Date:20021206
Docket: IMM-5857-01
Neutral citation: 2002 FCT 1267
Ottawa, Ontario, Friday, this 6th day of December, 2002.
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
YING CHEN
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated November 29, 2001, wherein the Board denied the applicant's motion pursuant to Rule 28 of the Convention Refugee Determination Division Rules, SOR/93-45, to reopen the hearing into her claim to Convention refugee status.
[2] The applicant, a citizen of China, entered Canada on September 10, 1999 as part of a group of persons who arrived illegally by boat. She made a refugee claim that was heard by the Board on February 14, 2000. A negative decision was rendered on the applicant's refugee claim on March 29, 2000. Leave for judicial review in this Court was denied on October 10, 2000. On September 17, 2001, the applicant filed the motion that is the subject of this application. The applicant argued the Board had jurisdiction to reopen the hearing into the applicant's claim due to a breach of the rules of natural justice. On November 29, 2001 the Board denied the motion, concluding that it did not have the jurisdiction to reopen the hearing as there had been no breach of the rules of natural justice.
[3] There is no express statutory authority that allows the Board to reopen a hearing. In the absence of express statutory authority, a tribunal cannot generally set aside its own decisions, see Lugano v. Canada (Minister of Manpower and Immigration), [1977] 2 F.C. 605 (C.A.). However, in Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.). Mr. Justice Marceau, writing for the Court, recognized that the Immigration Appeal Board (the predecessor to the Convention Refugee Determination Division) could reopen a hearing in the event of a breach of the rules of natural justice at pp. 293-294:
The power of the Board to reopen a redetermination hearing, not to consider new facts but to allow the introduction of evidence that the applicant has failed to adduce cannot be so readily discarded. Indeed, it is now firmly established, in the jurisprudence of this Court, that if the hearing of an application has not been held according to the rules of natural justice, the Board may look at its decision as a nullity and reconsider the matter (see Gill v. Canada (Minister of Employment and Immigration), Singh and Nabiye, supra).
[4] The sole issue in this application is whether the Board erred by concluding it did not have jurisdiction to reopen the hearing because there was no breach of the rules of natural justice.
[5] The Court has reviewed the Board's decision and agrees that there was no breach of natural justice in the initial hearing. The applicant's motion was founded upon the failure of the Board to consider documentary evidence that was before the Board at the time of the initial hearing, as demonstrated by references to that evidence in its reasons. The applicant's argument that the Board failed to properly consider that evidence was a matter resolved by this Court's refusal to grant leave for judicial review.
[6] The applicant's remaining arguments are directed towards the merits of her claim. The Board, in its initial decision, rejected the credibility of the applicant notwithstanding the letter from the Bishop confirming that the applicant is a member of the underground Roman Catholic Church. While I may or may not agree with this credibility finding, it does not raise a breach of natural justice. A breach of natural justice relates to the failure to have a fair hearing. There is no allegation that the Board which heard this refugee claim was biased, or that the applicant did not have a fair hearing in some other respect. The Board does not have the jurisdiction to order a hearing reopened simply to review the merits of a claim. Accordingly, the Board did not err in refusing to reopen the hearing.
[7] At the hearing, neither counsel proposed a question for certification. I agree that there is no question for certification.
ORDER
THIS COURT HEREBY ORDERS THAT:
For these reasons, thisapplication for judicial review is denied, and no question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5857-01
STYLE OF CAUSE: YING CHEN v. MCI
DATE OF HEARING: November 28, 2002
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: December 6, 2002
APPEARANCES BY: Mr. Timothy Leahy
For the Applicant
Ms. Mary Matthews .
For the Respondent
SOLICITORS OF RECORD: Mr. Timothy Leahy
Attorney-at-Law
5734 Yonge St
Ste 509,
Toronto, Ontario
M2M 4E7
For the Applicant
Ms. Mary Matthews Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021206
Docket: IMM-5857-01
BETWEEN:
YING CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER